the rate roll as prepared does not afford to the proprietors all the information that the statute intended them to have. If the original value of the land were given, unaffected by the improvements in value consequent upon the execution of the work, it would certainly be possible for the ratepayer to ascertain how the commissioners had regarded the benefits conferred upon him as compared with his neighbors. But why is it assumed that the original values are to be given? The rate is made after the works have been completed, and if the estimated value to be given is an actual value, it must, one would think, be the value of the property as it stands at the time when the valuation. is made. It would probably be going too far to say that the statute deliberately, and of set purpose, contemplates that the considerations which enter into the minds of the commissioners in making their assessments should remain hidden from the parties affected by their conclusions, but it is quite certain that no provision has been made in the statute for giving the ratepayer an opportunity to criticize the processes by which they have arrived at their results.

On one ground only has the Judge at Chambers. allowed the certiorari, and this apparently against his own judgment and in deference to the decision of this court in re Bishop's Dyke, the case already referred to in 20 N. S. R. 223. The item complained of in the rate, and to which the case referred to is assumed to be applicable, is $580.00 for estimated damages, payable for lands, sods, &c. It appears from the affidavits that, as stated by the learned judge, the damages thus provided for, with the exception of $68.00, have been" either fixed under the provisions of the act by the proper authorities, or the parties have agreed upon the amount under the act. And as to this sum of $68.00, against it there is a claim for damages of $500.00 from the Pidgeon Fertilizer Company, one claimant alone, and the affidavits show that more than this estimated amcunt is justly due to claimants and must ulti

mately be raised and paid." We are, therefore, asked by counsel for the applicant to say that a rate, even if in every other respect unobjectionable, is bad, although every cent proposed to be raised under it will be required to pay outstanding claims, and after the whole amount is disbursed there will still be a further rate required to cover the deficit that will yet remain, because the precise amount payable to some of the creditors remains to be ascertained. It should require some strong authority to impose upon the court the necessity of subjecting the parties to the inconvenience and expense of another rate under such circumstances as these.

In the case of Bishop's Dyke, it appeared by the return to the certiorari that two of the assessors, by the direction of the commissioners, had appraised the damages payable to James L. Bishop, one of the owners, in consequence of some of his marsh having been dyked out and other portions damaged by carting over them, and also damages payable to E. R. Bishop, another owner sustained from a similar cause. Ritchie, J. delivering the judgment of the court, refers to the affidavit of James L. Bishop, that he never appointed either of the assessors to value or ascertain the damage he had sustained or consented to their doing so, and that his damages were really much greater than the amount included in the rate. The learned judge found no authority in the Act enabling the assessors to value the damages sustained by any proprietor for injury to his marsh, and considered it contrary to all principles of right and equity that they sh uld be allowed to do so for they would then be called upon to dec.de what amount the owners of the marsh, the majority of whom had appointed the assessors, should pay to one of the co-owners who could not control the appointment of any one of the assessors." It is difficult to gather from the judgment referred to how far the opinion of the learned. judge, which was the judgment of the court, was influened

by the considerations of justice and equity to which he referred, and in what respects it was dependent upon inferences drawn from the terms of the statute then in force. In so far as it was founded on considerations of equity and justice it can have no application here. As to the expenses provided for in the items under consideration here, either the amounts payable or the manner of ascertaining them have been agreed upon by the parties claiming to be injured. The statute, itself, provides for their ascertainment by methods under which no injustice can be done. If the decision referred to is dependent upon the terms of the statute then in force, we have no means of knowing what the reasoning was by which the learned judge arrived at his conclusion. In any case the statute now in force is different in many important respects from the chapter of the Revised Statutes under which the case. of Bishop's Dyke was decided. I can find nothing in the statute now in force to say that a liability lawfully incurred cannot be legally provided for by the imposition of a rate until the precise amount of it is ascertained. Section 36, it is true, provides that if delay is necessary in order to ascertain the amount due for compensation to any one or the costs and expenses of any necessary litigation, or if there is any other good cause, the expenses of or incidental to the work or works may form the subject of more than one rate." But the statute does not prevent the commissioners from including in the first rate so much. of the unascertained compensation as they know must necessarily be paid, and I think that where a proprietor objects to a rate because the amount which it is intended to provide for is unascertained, it is incumbent upon him to offer some sort of proof that the amount provided for is more than will be requisite. The language of section 29, subsection c. to which our attention was directed at the argument, is wide enough to apply to any sum known to be payable although the precise amount or even the actual and proper claimant may not yet be ascertained. These

words do not appear to be in the statute under which the case of Bishop's Dyke was decided, and they seem to me to justify this court in upholding the rate on the only point on which the certiorari has been granted.

In my opinion the appeal of the commissioners should

be allowed with costs.

Appeal allowed with costs.

NOTE. The decision in the foregoing case decided the cases, In re Assessment of John A. Mosher, et al and In re Assessment of Windsor Baptist Church. Referring to the latter case the learned judge said :

The only question in this case that is not disposed of by the judgment in the case of the Dominion Cotton Mills Company arising out of the same assessment, is the question whether the lands of the Baptist Church are a part of the Trecothic Marsh. This, it seems to me, is a question of physical geography pure and simple and is settled against the Church by the affidavits of Mr. Morse and Mr. Shand who show that when the aboiteau was out the lands were partially overflowed by the tide and that it was necessary to secure the consent of the railway department to the temporary closing up of the culvert on the Windsor Branch of the Intercolonial railway to protect them while the aboiteau was in process of construction. This protection was only a temporary device as is shown by the affidavit of O'Brien, without which we might safely have assumed that the railway department would not consent to the permanent closing up of a culvert found to be necessary when the road was constructed. The question of more or less in the assessment is not, I think, within the jurisdiction of this Court. It was a matter to be determined to the best of their judgment by the commissioners and they have sworn that they took into account the advantage derived by these lands from the protection afforded by the roadbed of the railway and the fact that by reason of this protection they were not so dependent upon the dyke as the lands to the east of the railway. The commissioners in charge had the power and were in fact under a duty to do the work irrespectively of any resolution of proprietors and the land owners cannot lie. by while it is done, make no protest against the execution of the work, and then object to the contribution of their proportion of the amount required to pay for it.

MCKINNON V. PETRIE.

Before TOWNSHEND, FRASER and RUSSELL, JJ

Trial-Finding of judge on question of fact set aside.

In an action to recover a balance of $100, claimed to be due on account of two lots of land sold by plaintiff, the evidence satisfied the majority of the Court that the whole amount which defendant agreed to pay had been paid either to plaintiff or to her duly authorized agent.

Held, that, under these circumstances, the judgment of the trial judge in plaintiff's favor must be reversed, defendant's appeal allowed with costs, and judgment entered for defendant.

Appeal from the judgment of MEAGHER, J., in favor of plaintiff in an action to recover a balance alleged to be due for land sold by plaintiff and conveyed, at defendant's request, to Marie Petrie. The judgment appealed from was as follows:

Two lots of land were sold by the plaintiff to the defendant for the respective prices of $100 and $600. The present action is to recover $100 alleged to be due on the latter.

The deed of the former lot appears to have been executed by the plaintiff and delivered to the defendant, to be sent by him to Boston for execution by other parties, there, and then to be returned by the defendant to her, and not finally delivered until the price was paid. It was never returned to the plaintiff. The price, however, was paid to the plaintiff through Henry McDonald, some time in the winter of 1903. I mention this merely to show that the $100 so paid was not on account of the $600 lot. By that payment the terms of the receipts, dated December 18th, 1903, were satisfied as between McDonald and the defendant. If it assumed that Henry McDonald retained $100 out of the $400 which defendant received from the bank and took to the former's office, it may well be that it was that same $100, which, at a later date, was applied by McDonald to satisfy the price of the $100 lot. If that $100 was received by McDonald out of the $400 for the purpose of protecting the defendant in respect smaller lot, until the title was conveyed to him, it is clear

to the